Selected Issues Relating to the CISG's Scope of Application

Abstract

This paper addresses two issues concerning the scope of the United Nations Convention on Contracts for the International Sale of Goods (“CISG”), both of which have arisen in recent decisions applying the Convention: 1) whether requirements imposed by U.S. domestic sales law on attempts to disclaim implied warranties apply to attempts to derogate from the seller‘s obligations under Arts. 35(2)(a) & (b) CISG; and 2) whether burden of proof questions that are not expressly addressed in the CISG are governed by the general principles of the CISG. The paper defends the use of the distinction between substantive and procedural law in defining the scope of the CISG with respect to burden of proof issues, and in determining the whether the Convention provides for the recovery of damages for attorneys’ fees incurred to litigate a claim under the CISG. The paper concludes by arguing that defining the limits of the Convention‘s scope is critical to its success, and to the success of future attempts to create uniform international commercial law.

Keywords: Commercial Law, International Commercial Law, Sales Law, International Sales Law, United Nations Sales Convention, CISG, Sales Convention, Scope of the CISG, Burden of Proof, Warranty Disclaimers, CISG and the UCC, Interpretation of the CISG, Interpretation of Treaties, Procedure vs. Substance